By Valerie Butera

With the holiday shopping season fast approaching, OSHA has reached out to retailers strongly encouraging them to adopt a set of Crowd Management Safety Guidelines for Retailers, in addition to their existing safety and health policies and procedures.

Citing the tragic death of a retail employee who was crushed during a stampede at a Black Friday event in 2008, OSHA has urged the adoption of these crowd control protocols as a critical step for employers and store owners to take in ensuring employee safety during the holiday shopping rush, and other events where large crowds may gather.  OSHA recently sent letters directly to major retailers, retail trade associations, and fire marshals enclosing its recommended crowd management guidelines and encouraging employers and first responders to establish a plan well ahead of events likely to draw large crowds, such as Black Friday.

Crowd management plans should include, at a minimum:

  • Barricades or rope lines that do not start immediately in front of store entrances to manage pedestrian traffic;
  • Police officers or other trained security or crowd management personnel on site;
  • Communication to shoppers of updated information about the event and the store, such as the location of entrances and exits, store opening and closing times, and the location of hot items within the store;
  • Additional staff sufficient to meet the needs of large crowds of customers;
  • Crowd management training for all employees to ensure that they understand how to manage the event;
  • Prevention of additional shoppers from entering the store when it is at or near its maximum occupancy level;
  • Clear and unobstructed pathways to all exit doors, which should be unlocked;
  • Emergency procedures in place in case a dangerous situation does arise; and
  • Instructions to employees that in the event of an emergency they should follow instructions from first responders regardless of company rules.

If they have not already done so, retailers should begin crowd management planning for Black Friday now.  Reach out to local police and other first responders to inform them if large crowds are expected at your stores on Black Friday and coordinate a response plan in case an emergency takes place.  Taking time to employ these simple measures will go a long way towards ensuring that employees enjoy a safe and healthy holiday season.

Black Friday.jpgBy Jennifer Barna

As shoppers and retailers get ready to celebrate “Black Friday” —  the kickoff to what we hope will  be a busy holiday shopping season —  it’s a good time for retail employers to review their policies on timekeeping and to ensure that non-exempt employees know how to record their working time.  Where is it not prohibited by state laws concerning meal and other breaks, employees may sometimes end up missing all or part of an unpaid meal break due to the demands of a busy sales floor. Employers need make sure employees are properly compensated for time spent working during what would have been an unpaid break, and to protect against allegations to the contrary under the federal Fair Labor Standards Act or similar state wage laws. It will go a long way in avoiding, and if necessary, defending against such claims if your company timekeeping policies are carefully drafted, circulated, and followed.

The Sixth Circuit Court of Appeals recently issued a ruling that provides some guidance on this issue.  In White v. Baptist Memorial Healthcare Corp, et al (No. 11-5717) (6th Cir., Nov. 6, 2012)  the plaintiff, a nurse, claimed that she was not compensated for work done during her unpaid meal break time at the defendant hospital.  The Sixth Circuit upheld the lower court’s dismissal of plaintiff’s claims because the employer’s handbook included an “exception log” mechanism that allowed employees to report when they missed all or part of a meal break, and that Plaintiff knew about, but failed to take advantage of, that mechanism.

Relying upon prior decisions from other federal appeals courts, the White Court found:  “Under the FLSA if an employer establishes a reasonable process for an employee to report uncompensated work time, the employer is not liable for non-payment if the employee fails to follow the established process.”  Employers should be guided by this finding, and ensure that they have policies in place that clearly inform non-exempt employees how to record or report all time worked, including instances of missed or interrupted meal breaks.

Having the appropriate policies in place is, of course, just the first step.  It is also imperative for those policies to be sufficiently communicated and enforced.  For example, in ruling for the employer in White, the Sixth Circuit found it significant that: (a) Plaintiff admittedly knew about the “exception log” policy in the handbook (and had, in fact, used it successfully on occasion to obtain pay for time worked during her meal break period); and  (b) there was no evidence that the defendant employer discouraged its employees from reporting time worked during meal breaks or that the employer was otherwise notified that their employees were failing to report time worked during meal breaks.

Retail employers should therefore ensure not only that their non-exempt employees know about the time recording policies, but also that their supervisory managers (whether non-exempt or exempt) who work “on the ground” at the retail locations know about, and enforce, the policies.  Even if a company has the right policies in place, it could all be for naught if there is evidence that managers routinely look the other way as employees are required to work through all or part of their unpaid meal break without compensation.